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Incorporated.

WALTHER v. FEC

On April 17, 1979, the U.S. District Court for the District of Columbia denied
the FEC's motion to dismiss the claim of Henry L. Walther in a suit filed
against the FEC on November 21, 1978, in accordance with 2 U.S.C. §437g(a)(9).

The plaintiff contended that the Commission had acted contrary to law in
dismissing 45 complaints filed with the Commission by Mr. Walther and the
National Right to Work Committee pursuant to 2 U.S.C. §437g(a)(1). Each
complaint asserted that both a candidate for federal office and the candidate's
committee had accepted illegal contributions in excess of the $5,000 contribution
limitation established by 2 U.S.C. §441a(a)(2)(A). The complainants claimed
that the alleged violations had occurred when contributions were accepted
from both the AFL-CIO political committee (COPE) and from political committees
set up by member unions of the AFL-CIO (union committees).

The plaintiff contended that COPE and some union committees were subject
to the same control and, therefore, shared one contribution limitation under
441a(a)(5). (The 441a(a)(5) anti proliferation provision provides that contributions
from separate PACs which are "established or financed or maintained or controlled"
by the same person or group of persons shall be considered to have been made
by a single political committee.)

The FEC contended, on the other hand, that as a matter of law, 441a(a)(5)
was not intended by Congress to apply to the relationship between the AFL-CIO
Federation and its membership (union locals). The FEC also maintained that
since the agency had publicly construed the anti proliferation provision to
exclude cooperation between COPE and union PACs, no candidate could knowingly
violate the statute by accepting contributions from both. (In 1977, the FEC
had dismissed a complaint filed by the National Right to Work Committee against
the AFL-CIO, which had alleged that the AFL-CIO and member unions were affiliated.
The National Right to Work Committee never appealed that determination to
the court.) Therefore, the FEC filed a motion to dismiss the case.

The court identified the central question presented by the Commission's motion
to dismiss as one of statutory construction: What is the correct application
of 441a(a)(5) to the relationship between COPE and union committees?

After examining the language of the statute and the policy underlying the
Act, the court refused to accept the FEC's interpretation of the statute for
the following reasons:

The court found nothing in the anti proliferation language of 441a(a)(5)
to support the proposition that certain PACs were intended to be excluded
from its scope. On the contrary, the statute enunciates an inclusionary
rule wherein the PACs of a labor organization and its locals are automatically
treated as one PAC. The statute does not identify any relationships excepted
from the 441a(a)(5) rule.

The court accepted neither the FEC's reliance on the legislative history
of the statute nor its interpretation of that history to support the FEC
position that COPE and union PACs were intended to be exempt from the anti proliferation
provision.

FEC regulations, cited by the Commission in support of its position, declare
the circumstances under which two PACs will always be treated as one. The
court determined that cited regulations do not address the issue at hand:
when two PACs are never treated as one.

Accordingly, the court concluded that 441a(a)(5) applies to all political
committees controlled by the same person or group of persons except for certain
exemptions not relevant to this case. Therefore, the relationship alleged
by the plaintiff may constitute a violation. Furthermore, the court rejected
the FEC's contention that the agency's interpretation of the statute precluded
commission of civil or criminal violations of the Act by candidates. The court
concluded that, although an incorrect administrative interpretation may have
some bearing on determining whether or not a party acted knowingly, it does
not provide immunity to the party.

Finally, in denying the FEC motion to dismiss, the court held that the plaintiff
had alleged facts sufficient to withstand a motion to dismiss. However, the
court pointed out that this opinion could not be construed as concluding that
a violation had occurred or that the FEC had actually failed to perform its
statutory duty.

Cross-motions for summary judgment were filed. On June 15, 1979, the U.S.
District Court for the District of Columbia granted summary judgment to the
FEC.

Based on the standard of judicial review that only arbitrary and capricious
administrative actions of an agency may be reversed, the court determined
that the Commission's decision not to investigate Walther's complaints was
"eminently reasonable." The court characterized the Walther complaints as
a "shambles" containing serious shortcomings.

WEBER v. HEANEY

The U.S. Court of Appeals for the Eighth Circuit recently held that the Federal
Election Campaign Act (FECA) preempted the Minnesota Congressional Campaign
Reform Act in its entirety. The court's June 17, 1993, decision in John
Vincent Weber v. William M. Heaney affirmed a district court holding.
The Commission was an amicus curiae in the litigation.

Background

Under the Minnesota Congressional Campaign Reform Act, U.S. House and Senate
candidates on the general election ballot may choose to limit their campaign
expenditures to specified amounts. A contributor to these candidates can then
receive up to a $50 refund from the state. If one candidate agrees to the
limit but the major party opponent does not, neither candidate is subject
to the spending limit, but the first candidate is entitled to a public funding
grant from the state. Violations of the voluntary expenditure limit are subject
to civil penalties of up to four times the amount of the excess spending.

The FECA "supersede[s] and preempt[s] any provision of state law with respect
to election to Federal office." 2 U.S.C. §453. The FEC addressed the
Minnesota preemption question in AO 1991-22,
requested by three members of the Minnesota delegation to the U.S. Congress.
The Commission concluded that the Campaign Reform Act sought to regulate an
area under the sole authority of federal law and was therefore preempted.
The requesters, seeking the same ruling from the courts, filed suit against
the state officials responsible for enforcing the Campaign Reform Act.

District Court Decision

In deciding whether the FECA preempted the Minnesota Act, the U.S. District
Court for the District of Minnesota found that §453 and its legislative
history were too ambiguous to provide much guidance and therefore looked to
the FEC's interpretation of §453 in its regulations. (11 CFR 108.7 provides,
in part, that federal law supersedes state law in the area of expenditure
limitations.) The court found that "this regulation is probably the most persuasive
evidence that section 453 was intended to preempt all state laws purporting
to regulate congressional campaign expenditures." The court noted that the
regulation passed Congressional review in 1977. "Thus, the Court infers that
this regulation, because it was tacitly approved by Congress, represents a
valid interpretation of Congressional intent." The court also accorded deference
to the Commission's conclusion in AO 1991-22.

On June 11, 1992, the court held that the Minnesota Campaign Reform Act was
preempted in its entirety based on the FEC's interpretation of §453.
The court permanently enjoined Minnesota from implementing or enforcing the
Act. (No. 4-91-1009.)

Court of Appeals Decision

Concluding that §453 was susceptible to more than one reading, the court
of appeals nevertheless held that "under every plausible reading of §453,
the Campaign Reform Act falls squarely within the boundaries of the preempted
domain." (No. 92-2458.)

Like the district court, the court of appeals was persuaded by the FEC preemption
regulation: "We find this duly authorized regulation is a further express
preemption of the Campaign Reform Act."

The court rejected appellants' argument that the regulation was not applicable
to voluntary expenditure limits. The court even questioned whether the limits
were "truly voluntary" in light of the benefits bestowed on those who complied
with them and the penalties imposed on those who did not.

WERTHEIMER v. FEC (00-5371)

On October 26, 2001, the U.S. Court of Appeals for the District of Columbia
upheld a district court's dismissal of a complaint filed against the Federal
Election Commission by Fred Wertheimer, Scott Harsbarger and Archibald Cox
(appellants referred to as Wertheimer).

Background

On September 13, 2000, Wertheimer filed a complaint against the FEC in the
U.S. District Court for the District of Columbia. In the complaint, Wertheimer
alleged that the Commission's failure to implement and construe the Fund Act
to identify party expenditures coordinated with publicly funded Presidential
candidates as impermissible "contributions" and "expenditures" injured them
by:

Depriving them of required information about the source and amount of
candidates' financing;

Preventing them from determining whether publicly financed candidates
were abiding by the law; and

Interfering with their right to direct that their three-dollar income
tax return check-off be used in a lawful fashion.

On October 10, 2000, the district court dismissed Wertheimer's case on the
grounds that:

Wertheimer's other claimed injuries did not support their standing to
sue the Commission.1

Appeals Court Decision

On appeal, Wertheimer relied on their alleged informational injury. The appeals
court, however, affirmed the district court's decision. It held that Wertheimer
had not satisfied their burden to establish their standing to bring the case
because they had failed to assert a sufficient injury in fact. Wertheimer's
appeal relied on FEC v. Akins,2
which, the court of appeals explained, holds that "a voter suffers cognizable
injury under FECA when it is deprived of information that FECA requires disclosed."
The court concluded that Wertheimer failed to show either that they were deprived
of any information or that the legal ruling they sought might provide additional
factual information. Wertheimer was not seeking additional facts, but "only
the legal determination that certain transactions constitute coordinated expenditures."
As a result, the court found that Wertheimer failed to demonstrate standing.

FOOTNOTES:

WHITE v. FEC

On April 24, 1992, the U.S. District Court for the Western District of Pennsylvania
granted the FEC's motion to dismiss this case based on the report and recommendation
of the magistrate judge, which the court adopted as its opinion. (Civil Action
No. 91-1201.)

William D. White challenged the constitutionality of 11 CFR 110.11(a), which
permits candidates (except those receiving public funding1)
to make unlimited contributions of personal funds to their own campaigns.
Mr. White claimed that the rule violated the equal protection provision of
the Fifth Amendment by conferring a privilege on candidates that is denied
to other citizens. He sought an order compelling candidates to pay a penalty
in the amount of their excessive contributions. He also sought a preliminary
injunction barring candidates from making contributions to their own campaigns
in excess of $1,000. The court denied that motion on August 26, 1991.

In ruling on the issues, the court pointed out that the Supreme Court upheld
the challenged provision in Buckley
v. Valeo. In that case, the High Court recognized that "the use of
personal funds reduces the candidate's dependence on outside contributions
and thereby counteracts the coercive pressures and attendant risks of abuse
to which the [Federal Election Campaign] Act's contribution limitations are
directed." The district court also cited California
Medical Association v. FEC, in which the Supreme Court held that
the disparities in the Act's contribution provisions do not violate equal
protection rights.

Because the Supreme Court has already ruled on the issue raised by Mr. White,
the district court found that there was no need to certify his constitutional
challenge pursuant to 2 U.S.C. §437h.2 The
court therefore granted the FEC's motion to dismiss based on plaintiff's failure
to state a claim for which relief may be granted.

FOOTNOTES:

1 Presidential candidates who receive public funds
are subject to a $50,000 limit on contributions to their own campaigns. 2 This provision provides for review of constitutional
issues: the U.S. district court immediately certifies to the U.S. court of
appeals all questions of the constitutionality of the Federal Election Campaign
Act.

WHITE v. FEC

On July 31, 1997, the U.S. District Court for the District of Columbia granted
the FEC's request for summary judgment and dismissed this case.

William D. White, the plaintiff, had charged in this suit that the FEC had
acted contrary to law when it dismissed and closed an administrative complaint-later
designated MUR 3920-he had filed in November 1994.

WHITMORE v. FEC

On December 9, 1994, the U.S. District Court for the District of Alaska dismissed
Whitmore and Quinlan v. FEC, in which the plaintiffs challenged the
constitutionality of permitting federal candidates for the Alaska at-large
seat in the U.S. House of Representatives to accept contributions from individuals
and PACs residing outside of Alaska.

The U.S. Court of Appeals for the Ninth Circuit, on October 26, 1995, affirmed
the district court's dismissal.

District Court Decision

Joni Whitmore was the Green Party's 1994 candidate for U.S. House Representative
from Alaska. She refused out-of-state contributions throughout her campaign.
James Quinlan is a resident of Alaska. Plaintiffs argued that the Federal
Election Campaign Act (the Act) permitted out-of-state contributions, which
violated their constitutional rights, hurt Ms. Whitmore's candidacy and diluted
Mr. Quinlan's vote.

The court found that the plaintiffs lacked standing to bring this case because
they did not demonstrate injury-in-fact or causation, or that the relief they
sought would redress the alleged injury.

An injury-in-fact must affect a plaintiff in a personal and individual way.
The court deemed Ms. Whitmore's alleged injury to be hypothetical and speculative.
The court found no evidence to suggest that Ms. Whitmore would have fared
better in the election if out-of-state contributions had been prohibited.
As to the allegation that the Act injures Mr. Quinlan by depriving him of
his right to equal protection and to be governed by a republican form of government,
the court said there was no injury-in-fact because all candidates were free
to solicit and receive contributions.

To show causation, a plaintiff's injury must be traceable to the challenged
action of the defendant. The court stated that Ms. Whitmore failed to present
any facts indicating that the government had caused non-Alaskans to contribute
to her opponents, prevented her from soliciting such contributions or prevented
non-Alaskans from contributing to her. The Act, the court found, does not
treat the plaintiffs any differently than other American citizens.

Lastly, the court stated that there was no evidence to show that prohibiting
her opponents from accepting out-of-state contributions would redress Ms.
Whitmore's injury; the effect of out-of-state contributions on her campaign
was wholly speculative.

The court said " . . . to accomplish the result plaintiffs seek, the court
would have to add to [the Act] a prohibition [on] nonresident contributions,
which it is not permitted to do. . . . [R]egulation of federal elections is
more appropriately committed to the legislature, not to the judiciary."

Appeals Court Decision

The court of appeals affirmed the district court's dismissal of this case
on grounds that plaintiffs lacked standing under Article III of the constitution
to file this suit and that, even if they had standing, their claims were frivolous.

WILKINSON v. FEC

On February 3, 2004, the U.S. District Court for the District of Utah, Central
Division, granted the FEC and Clark Wilkinson's joint motion to dismiss this
case. Mr. Wilkinson had asked the court to set aside the Commission's final
determination that, as treasurer of the Friends of Bob Gross Committee, he
failed to file the Committee's July and October 2002 quarterly reports. Mr.
Wilkinson had also asked the court to set aside the Commission's assessment
of $5,400 in civil money penalties under its administrative
fines regulations. 11 CFR 111.30-111.45.

Background

On October 29, 2002, the Commission found reason to believe (RTB) that the
Committee and Mr. Wilkinson failed to file the July quarterly report, and
on December 23 the Commission found RTB that they failed to file the October
quarterly report. The Commission calculated a $2,700 penalty for each report
based on the FEC's schedule of administrative fine penalties. Mr. Wilkinson
challenged the RTB findings under the administrative process provided for
in Commission regulations. 11 CFR 111.35-111.37. After reviewing the RTB findings
and Mr. Wilkinson's written responses, the FEC Reviewing Officer recommended
that the Commission make a final determination that the Committee and Mr.
Wilkinson violated 2 U.S.C. §434(a) and assess $5,400 in civil penalties,
based on the two reports. On July 8, 2003, the Commission adopted the Reviewing
Officer's recommendations and made final determinations.

Court Complaint

In his court complaint, Mr. Wilkinson asserted that he resigned as treasurer
of the Committee on May 11, 2002, and sent the Committee written notice to
that effect on May 13, 2002. Mr. Wilkinson argued that, because he resigned
as treasurer prior to the two reporting dates, it was not his responsibility
to file the July and October 2002 quarterly reports, and, therefore, the Commission's
final determination and assessment of a civil money penalty against him is
in error.

WILSON v. USA

On March 2, 1995, the U.S. District Court for the Northern District of California
upheld the constitutionality of the National Voter Registration Act (NVRA).
Additionally, the court ordered the State of California to present a proposed
plan for implementing the NVRA within 10 days of this decision.

The U.S. Court of Appeals for the 8th Circuit upheld the district court's
decision on July 25, 1995.

The NVRA, a federal law that went into effect on January 1, 1995, mandated
that states requiring advance registration to vote in federal elections must
permit voter registration by: mail-in application; simultaneous application
with driver's license application, renewal, or change of address; and simultaneous
application at disability and public assistance agencies as well as other
agencies designated by the state. 1

California Governor Pete Wilson filed suit in the district court against
the federal government (including the FEC) on December 20, 1994. In his suit,
Governor Wilson argued that the NVRA, as an unfunded federal mandate, was
unconstitutional under the Tenth Amendment, which reserves to the states those
powers not delegated to the federal government by the Constitution.

The district court, however, deemed that Article I, Section 4, of the Constitution
does indeed delegate to the federal government the authority to enforce the
NVRA:

"The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof, but the Congress
may at any time by Law make or alter such Regulations, except as to the Places
of chusing [sic] Senators."

FOOTNOTES:

1 The FEC is the federal agency entrusted with the
development of a National Voter Registration Form. This form has been available
since January 1. The FEC is also required to submit a report to Congress every
2 years assessing the impact of the National Voter Registration Act and suggesting
improvements in voter registration forms and procedures.

WISCONSIN RIGHT TO LIFE, INC. v. FEC

On June 25, 2007, the Supreme Court upheld a district court ruling that the electioneering communication (EC) financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional “as applied” to ads that Wisconsin Right to Life, Inc. (WRTL), a 501(c)(4) nonprofit corporation, intended to run before the 2004 elections. The Supreme Court concluded that the EC financing restrictions are unconstitutional as applied to these ads because:

The ads are not express advocacy or its functional equivalent; and

The Court found no sufficiently compelling governmental interest to justify burdening WRTL’s speech.

Background

WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the prohibition on the use of corporate funds to pay for ECs unconstitutional as applied to what it calls “grassroots lobbying” communications planned for the period before the 2004 elections. After the district court both denied WRTL’s motion for a preliminary injunction and dismissed WRTL’s complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL’s "as applied" challenge. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL’s 2004 ads.

Under the Federal Election Campaign Act (the Act) and Commission regulations, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), an electioneering communication is defined, with some exceptions, as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate and is publicly distributed for a fee within 60 days before the general election or 30 days before a primary election or a nominating convention for the office sought by the candidate. 2 U.S.C. § 434(f)(3) and 11 CFR 100.29. Corporations may not make electioneering communications using their general treasury funds.1 2 U.S.C. §§ 441b(a)-(b) and 11 CFR 114.2 and 114.14.

The plaintiff’s activities involved paying for broadcast advertisements
in 2004 that asked Wisconsin listeners to contact U.S. Senators Kohl and Feingold and to ask them to vote against anticipated filibusters of federal judicial nominees. Senator
Feingold was up for re-election in 2004 and some of the intended ads would have run during the EC periods for Wisconsin’s primary and general elections.

According to WRTL, because their ads expressed an opinion on pending Senate
legislative activity, urged listeners to contact their Senators and did not
refer to any political party or support or attack any candidate, they constituted
bona fide grass-roots lobbying. They argued that these ads were not the "functional equivalent of express advocacy," and, thus, there was no constitutional justification for the prohibition on corporate payments for these ads or for requiring the ads to be paid for through a political action committee. See McConnell v. FEC. WRTL asserted that in this instance the prohibition on corporate-sponsored electioneering communications unconstitutionally burdened the rights of free speech, free association and petitioning the government--all in violation of the First Amendment.

WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the ban on corporate treasury funding of ECs unconstitutional as applied to what it called “grassroots lobbying” communications planned for the period before the 2004 elections. After the district court denied WRTL’s motion for a preliminary injunction and dismissed its complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL’s “as applied” challenge. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL’s 2004 ads.

"As applied" Constitutional Challenge

Supreme Court Decision

The Supreme Court issued a decision upholding the District Court ruling that the EC financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional as applied to WRTL’s ads. The Supreme Court also rejected the FEC’s argument that the case was moot.

Mootness. The FEC argued that the cases involving WRTL’s ads were moot because the 2004 election has passed and WRTL has no continuing interest in running its ads. The Court rejected this argument, noting that the case fits within the established exception to mootness for actions “capable of repetition, yet evading review.” The Court noted that WRTL could not have obtained complete judicial review of its claims in time to air its ads in the period prior to the 2004 election and that WRTL had credibly claimed that it intended to run materially similar ads during future EC periods.

Electioneering communication financing restrictions unconstitutional “as applied” to WRTL ads. The Court rejected the FEC’s argument that WRTL has the burden of demonstrating that the EC provisions are unconstitutional as applied to its ads. The Court reasoned that the EC
provisions burden political speech and, as such, are subject to strict scrutiny. Therefore, the government must prove that applying the EC provisions to WRTL’s ads “furthers a compelling governmental interest
and is narrowly tailored to achieve that interest.” The Court stated that while in McConnell v. FEC the EC provisions had satisfied the standard of strict scrutiny for the regulation of express advocacy and its functional equivalent, the Court in McConnell did not formulate a test for future as-applied challenges. The Court rejected the use of an intent-and-effect test for determining when an ad is the functional equivalent of express advocacy and instead explained that the inquiry should focus on the substance of the communication.

The Court found that WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific federal candidate and, as such, did not constitute the functional equivalent of express advocacy. The Court noted that the content of the ads was consistent with that of a “genuine issue ad” focused on a specific legislative issue and urging the public to take action regarding that issue. Also, the Court noted, the ads’ content lacked “indicia of express advocacy” because they made no mention of “an election, candidacy, political party, or challenger . . . and [took no] position on a candidate’s character, qualifications, or fitness for office.”

In the decision, the Court cited its long recognition of the governmental interest in preventing corruption and the appearance of corruption in elections. The Court acknowledged that McConnell had upheld the EC financing restrictions on their face, but the Court determined that that anti-corruption interest did not justify application of the restrictions to the advertisements proposed by WRTL.

The Court concluded that because WRTL’s ads are not express advocacy or its functional equivalent, and because the Court found no compelling governmental interest to justify the burden on WRTL’s speech, the EC financing restrictions are unconstitutional as applied to these ads. The Court also noted that this case does not present the occasion to revisit McConnell’s facial upholding of the EC financing restrictions.

Summary Judgment Motion

On December 21, 2006, a three-judge panel of the United States District Court for the District of Columbia issued a 2-1 decision granting Wisconsin Right to Life’s motion for summary judgment, finding the electioneering communications provisions unconstitutional “as applied” to three broadcast ads WRTL had intended to run before the 2004 election. Based on the court’s decision, the ads would not have been subject to the ban on the use of corporate
treasury funds to finance ECs.

The three communications in question were two radio advertisements and one television advertisement WRTL had planned to run before the 2004 primary and general elections concerning anticipated filibusters of President Bush’s federal judicial nominees. The ads encouraged Wisconsin listeners and viewers to contact their Senators (Senators Feingold and Kohl) to urge them to oppose the filibusters. Senator Feingold was up for reelection in 2004, but Senator Kohl was not.

The three-judge panel considered the “as applied” challenge to the EC provisions based on two main arguments: whether the ads contained express advocacy for or against a federal candidate or the “functional equivalent” of express advocacy; and, if they did not, whether the government had demonstrated a compelling interest in regulating these ads.

Express Advocacy. To determine whether WRTL’s 2004 anti-filibuster ads contained express advocacy, or its functional equivalent, the court considered only the text and images of the ads and declined to consider contextual factors bearing on the ads’ purpose or likely effect. The court’s evaluation was based upon whether the ads: 1) described an issue that was or “likely” soon would be a “subject of legislative scrutiny”; 2) referred to the prior voting record or current position of the named candidate on the described issue; 3) exhorted the audience to do anything other than contact the candidate about the described issue; 4) promoted, attacked, supported or opposed the named candidate; and 5) referred to an upcoming election, candidacy or party of the candidate.

Considering those five factors, the court found that the anti-filibuster ads did not contain express advocacy or its functional equivalent and thus were not “intended to influence the voters’ decisions.” The court noted that the ads did not
mention an election, a candidacy or the individual’s “fitness for office.” While the ads discussed the filibuster issue, the court stated that they did not reference the Senators’ voting records, current or past, on this issue, and that they did not
promote, attack, support or oppose either Senator. Additionally, the court noted that the ads asked the audience to contact both Senators, not just the Senator up for reelection.

Government Interest in Regulating Issue Ads. In McConnell, the Supreme Court found that the compelling government interest in regulating the communications covered by the definition of electioneering communication was sufficient to uphold the statute on its face. However, the district court stated that by permitting “as applied” challenges to the provisions of the BCRA, the Supreme Court left open the question as to whether there is a compelling government interest in regulating “genuine issue ads” covered by the statute. In light of its finding that WRTL’s anti-filibuster ads did not contain express advocacy, or its functional equivalent, the three-judge panel evaluated the government interest in regulating these ads. The court found no compelling government interest and rejected the argument that the need for a “bright line” test is a basis for regulating “genuine issue ads,” noting that the “virtues of the bright line test cannot alone justify regulating constitutionally protected speech.”

Motion for Temporary Restraining Order and Preliminary Injunction
District Court Decision

On September 13, 2006, a three-judge panel of the U.S. District Court for the District of Columbia denied WRTL's motion for a temporary restraining order and preliminary injunction that would have prevented the Commission from enforcing the corporate financing restrictions applicable to ECs with regard to certain WRTL broadcast ads to be run before the 2006 primary and general elections.

On August 25, 2006, the three-judge court rejected WRTL’s motion for a temporary restraining order and preliminary injunction regarding its planned 2006 ads, finding that WRTL had not demonstrated that it was entitled to relief under the four applicable factors: (1) whether WRTL had a substantial likelihood of success on the merits; (2) whether WRTL would suffer irreparable harm in the absence of an injunction; (3) whether an injunction would cause substantial injury to the other party; and (4) whether the public interest would be furthered by the injunction.

Substantial likelihood of success on the merits. The court found that WRTL’s constitutional claim failed to “tip the scale in favor of” an injunction. The court stated that the restrictions on corporate financing
of ECs are presumed constitutional. In McConnell, the Supreme Court discussed the fact that a corporation has alternative methods of communicating its messages when the Court concluded that the EC restrictions are facially constitutional. In this case, the Defendants argued that the prohibition is consistent with the First Amendment because, among other things, WRTL retains these alternative methods of communication. Although the district court is currently considering whether these alternatives are in fact constitutionally adequate, the three-judge court found that it could not now conclude that WRTL would succeed on the merits based on an incomplete record.

Whether plaintiff would suffer irreparable harm if an injunction
was not granted. The court concluded that the actual limitation on WRTL’s freedom of speech is not nearly as great as WRTL had argued. While the court agreed that, absent a preliminary injunction, WRTL has forever lost the opportunity to use its general treasury funds to run the planned ads, it noted that WRTL is not precluded from forwarding its message in other ways. The EC provisions do not prohibit the speech in question; they only require that corporations and labor organizations engaging in such speech channel their spending through PACs. WRTL can also communicate its message though non-broadcast media, such as newspapers and the Internet. Moreover, the court noted that WRTL could spend unlimited corporate funds
to lobby via broadcast ads for the enactment of the Child Custody Protection Act so long as the ads omit any clear references to Senator Kohl.

Whether an injunction would cause substantial injury to other parties. It is the statutory duty of the FEC to enforce the campaign finance law. The court found that enjoining the FEC from performing its statutory duty would constitute a substantial injury to the agency that would be far greater than “WRTL’s harm from an FEC administrative investigation which carries little threat of imminent or certain sanction.”

Whether the public interest would be furthered by the injunction. Finally, the court found that granting the injunction would not further the public interest. The Supreme Court has determined that the EC prohibition serves compelling governmental interests. McConnell, 540 U.S. at 205. The three-judge court noted that the Supreme Court has made it clear that “as applied challenges,” such as WRTL’s, are permitted and has
commanded the district court to consider WRTL’s case on the merits
with regard to its planned 2004 ads. However, the three-judge court did
not find that these actions, without more, eliminated the presumption
of the prohibition’s constitutionality or that the balance of hardships
favored WRTL in this case.

Supreme Court Decision

On January 23, 2006, the U.S. Supreme Court issued a per curiam decision vacating the U.S. District Court for the District of Columbia’s judgment and held that the McConnelldecision did not preclude “as applied” challenges
to the EC restrictions in the BCRA. The Supreme Court asked the District Court to reconsider the merits of WRTL's challenge “as applied” to certain activities that WRTL describes as grassroots lobbying.

District Court Decision

On May 9, 2005, a three-judge panel of the U.S. District Court for the District of Columbia dismissed this case, with prejudice, for the same reasons given in the court’s August 17, 2004, decision to deny the plaintiff’s request for a preliminary injunction. The plaintiff appealed this decision to the Supreme Court on May 23, 2005.

Supreme Court Decision

On September 27, 2005, the Supreme Court agreed to hear WRTL's challenge to the ban on corporate financing of electioneering communications. The plaintiff has asked the Court to find the ban unconstitutional as applied to certain grass-roots lobbying activities. Earlier this year, a three-judge panel of the U.S. District Court for the District of Columbia had dismissed this case, with prejudice, finding that the Supreme Court’s decision in McConnell precluded the plaintiff’s challenge.

On January 23, 2006, The Supreme Court issued a per curiam decision vacating the District Court’s judgment in this case based on the district court’s incorrect interpretation of McConnell.

The district court reasoned that in upholding the EC provisions of BCRA in McConnell, the Supreme Court left no room for the kind of “as applied” challenge brought by WRTL. According to the District Court’s interpretation, McConnell upheld all applications of the primary definition of electioneering communication, suggesting little likelihood of success for an “as applied” challenge to a particular application of that definition. The District Court determined that this deliberate upholding of “all applications” stands in contrast to the Supreme Court’s explicit acknowledgment that other parts of the statute, which it also upheld, might be subject to “as applied” challenges in the future.

The Supreme Court, however, concluded that the District Court misinterpreted the relevance of McConnell's statement that it was upholding “all applications of the primary definition of electioneering communications.” The Supreme Court clarified that McConnell, in upholding the primary definition against a facial challenge, “did not purport to resolve future as applied challenges,” such as the one brought forth by WRTL. The Supreme Court vacated the judgment in the case and remanded it to the District Court to reconsider the merits of WRTL’s as applied challenge in the first instance.

WRTL filed a motion to reinstate the parties’ prior cross-motions for summary judgment on January 24, 2006.

Motion for Preliminary Injunction

On July 29, 2004, the court granted the plaintiff's unopposed motion to have the case heard by a three-judge panel, and also granted its motion to expedite proceedings on the request for a preliminary injunction. 2

District Court Decision

On August 17, 2004, the U.S. District Court for the District of Columbia
denied WRTL's motion for a preliminary injunction
that would have exempted certain WRTL broadcast ads from the ban on corporate
funding of electioneering communications.

The three-judge court rejected WRTL's motion for a preliminary injunction,
finding that it did not demonstrate that: (1) WRTL had a substantial likelihood
of success on the merits; (2) WRTL would suffer irreparable harm in the absence
of an injunction; (3) an injunction would not cause substantial injury to
other parties; and (4) the public interest would be furthered by the injunction.

Substantial likelihood of success on the merits

In McConnell, the Supreme Court upheld
the EC provisions of the BCRA in their entirety. Furthermore, the
reasoning of the court left no room for the kind of "as applied" challenge
brought by WRTL. The Supreme Court expressly stated that it upheld all applications
of the primary definition of electioneering communication, suggesting little
likelihood of success for an "as applied" challenge to a particular application
of that definition. This deliberate upholding of "all applications" stands
in contrast to the court's explicit acknowledgment that other parts of the
statute, which it also upheld. might be subject to "as applied" challenges
in the future.

Plaintiff would suffer irreparable harm if an injunction is not granted

The court concluded that the actual limitation on WRTL's freedom of speech
is not nearly as great as WRTL had argued. WRTL is not precluded from forwarding
its message or from exposing the public to the advertisements at issue, and
BCRA does not prohibit the speech in question, only requiring that corporations
and labor organizations engaging in such speech channel their spending through
PACs. In McConnell, the Supreme Court noted that corporations remain
free to organize and administer separate segregated funds for the purpose
of financing electioneering communications.

An injunction would not cause substantial injury to other parties

It is the statutory duty of the FEC to enforce the BCRA. To the extent the
injunction is entered, the FEC could not properly perform this duty, which
is a substantial injury to the FEC.

Public interest would be furthered by the injunction

The Supreme Court has determined that the provisions of the BCRA serve compelling
government interests. McConnell, 124 S. Ct. at 695-96. As a result,
interference with executing BCRA by enjoining its enforcement does not further
the public interest

The district court further ordered all parties to file appropriate supplemental
memoranda addressing the potential dismissal of the matter, and denied WRTL's
subsequent request to enter an injunction while WRTL pursued an appeal.

Emergency Motion for Injunction

Pending its appeal of the district court's decision, WRTL sought an emergency
injunction to allow it to broadcast ads designed to influence the votes of
Senators Kohl and Feingold on the expected filibuster of federal judicial
nominees. While WRTL is a 501(c)(4) organization that does not qualify for
any exemption permitting it to pay for ads from corporate funds, it asserted
that a number of unique factors indicated that its proposed ads were authentic
grass-roots lobbying and not electioneering communications. WRTL further asserted
that it met the criteria necessary for an injunction to be granted.

Appeals Court Decision on Injunction

On September 1, 2004, the United States Court of Appeals District of Columbia Circuit granted the
FEC's motion to dismiss WRTL's motion for injunction, citing a lack of jurisdiction.
Only the Supreme Court has jurisdiction over such an appeal, and the law does
not authorize the Court of Appeals to review the case.

Supreme Court Decision on Injunction

WRTL applied to the Supreme Court for an injunction
pending appeal. On September 14, the Supreme Court denied this request, finding that an "injunction
pending appeal barring the enforcement of an Act of Congress would be an extraordinary
remedy, particularly when this Court recently held that Act facially constitutional."
According to the Court, WRTL "failed to establish that this extraordinary
remedy is appropriate."

FOOTNOTES:

1 Commission regulations provide an exception allowing
"qualified nonprofit corporations" to pay for electioneering communications. 11 CFR 114.2(b)(2). However, WRTL alleges that it does not meet the definition of a qualified nonprofit corporation. 11 CFR 114.10.2 The Bipartisan Campaign Reform Act of 2002 (BCRA) provides for such expedited review of constitutional challenges to its provisions. See BCRA 403, 116 Stat. at 113-114.

CITIZENS FOR WOFFORD v. FEC

On April 14, 1995, plaintiff withdrew the complaint it had filed against
the FEC in the U.S. District Court for the District of Columbia. An FEC suit
filed against plaintiff on December 20, 1994, in the U.S. District Court for
the Middle District of Pennsylvania, Harrisburg Division, on December 20,
1994, is still in progress. FEC v. Citizens for Wofford (1:CV-94-2057).

Background

Both cases involve an FEC enforcement action borne out of the 1991 Pennsylvania
special election. The major party contenders in the special election were
Democratic nominee Mr. Harris Wofford and Republican nominee Mr. Richard Thornburgh.
The Democrats nominated Mr. Wofford on June 1, 1991, but did not certify the
nomination until September 5, 1994.

Citizens for Wofford, Mr. Wofford's principal campaign committee, regarded
contributions received following the June 1 designation but prior to the September
5 certification as primary contributions. 1

As a result, the Republican State Committee of Pennsylvania filed an administrative
complaint with the FEC. Following an investigation, the Commission found probable
cause to believe that Citizens for Wofford violated 2 U.S.C. §441a(f)
-the knowing acceptance of a contribution made in violation of the Federal
Election Campaign Act's limits. This was because contributions received after
June 1, the date of the nomination, should have been counted against the contributor's
general election limit. Attempts to reach a conciliation agreement with Citizens
for Wofford failed. This impasse lead to the filing of this case and FEC
v. Citizens for Wofford.

FOOTNOTES:

1 Counting these contributions against a contributor's
primary election limit instead of against the contributor's general election
limit would enable contributors to give up to twice as much to the party's
nominee as they would otherwise be able to; contributors would be able to
give up to their per-election limit to support Senator Wofford's primary election
campaign after the fact and again to support his general election campaign.